New Zealand Loyal v Electoral Commission [2023] NZHC 2827

October 26, 2023
Summary

A political party sought an order requiring the Electoral Commission to accept candidate nominations after the statutory deadline had expired.

Background

The applicants, NZ Loyal, were a registered political party running in the 2023 general election. The respondent, the Electoral Commission, is an independent statutory body charged with conducting elections in accordance with the Electoral Act 1993 (“Act”).

The Act governs, among other things, the nomination pathways for electoral candidates. There are two nomination pathways.

The first is a personal nomination process, where any qualified person can be nominated by two or more members of their electoral district (“First Pathway”). The second process requires the secretary of a registered political party to submit candidates in bulk (“Second Pathway”).  

Crucially in this case, statutory deadline is earlier for nominations under the Second Pathway. Nominations under the First Pathway must be submitted by noon on the nomination date, while Second Pathway deadline is at noon on the day before the nomination date. The Commission is required to reject any nominations received after the relevant deadline under s 128(1)(b) of the Act.

The nomination date is set in the writ calling the election. The writ for the 2023 general election was issued by the Governor-General who set the nomination date as 15 September.

Ms Smith, the party secretary for the applicant, submitted nominations for three candidates to the Commission under the Second Pathway before noon on 14 September. She then notified the Commission that she would submit a number of other nominations under the First Pathway prior to noon on 15 September, which she perceived to be the applicable deadline.

However, s 146C(2) of the Act prohibits the Commission from accepting nominations under the First Pathway if they have received notice from a party secretary that they intend to use the Second Pathway. The Commission informed Ms Smith of this, and that they would not accept any nominations after the noon 14 September deadline applicable to the Second Pathway.  

The Commission informed Ms Smith that the nominations would not be accepted, as she had given notice that she would be following the Second Pathway, meaning the First Pathway was no longer open to her. The Commission informed her of the noon 14 September deadline applicable to the Second Pathway.

The applicant filed judicial review proceedings in the High Court arguing that the Commission’s “decision” not to accept the additional candidates was unlawful. To preserve the status quo before trial, the applicant sought an interim order requiring the Commission to accept and publish the candidate list to reflect the nominations after noon on 14 September.  

The interim order hearing

The case proceeded on the basis that all the facts alleged by the applicant were proved, so that a preliminary legal question could be resolved, namely whether the High Court could grant the order sought by the applicant.

The court rejected the applicant’s claim for interim relief.

Parliamentary sovereignty

The primary reason for doing so was that the order sought would cut against the nomination deadlines, the nomination deadline being set directly in the Act rather than by the Commission.

The court affirmed that Parliamentary sovereignty is the fundamental constitutional principle in New Zealand law. It was confirmed that the courts have no jurisdiction to modify or ignore an Act of Parliament.

The court noted that its judicial review jurisdiction was an extension of Parliamentary sovereignty, embodying the court’s constitutional role to police exercises of discretionary power delegated by Parliament to the executive government and other public bodies. However, judicial review was not available here because the Commission was not exercising a discretionary power. Instead, it was simply acting in accordance with the terms of its empowering legislation.

For the court to have ordered that the Commission act in contravention of these statutory deadlines would require the Commission to contravene its empowering legislation. The court had no jurisdiction to make such an order.

The court went on to reject several technical arguments to the effect that the statutory deadline for nominations under the Second Pathway was noon 15 September rather than noon on the previous day.

Electoral integrity

The Parliamentary sovereignty point decided the case.

However, the court went on to note following clear Parliamentary intent was especially important in the context of the Act. The court noted that the Act recognises that the integrity of the electoral system is fundamentally important to maintaining liberal democracy in New Zealand. For such a system to survive requires the electoral system to have legitimacy among the public.

One aspect of maintaining public confidence in the electoral system is to ensure that elections are conducted impartially. In this context, allowing the Commission a discretion as to who received lenience (and who did not) regarding the deadlines for nominations would have the opposite effect. Justified or not, questions could be raised about the Commission giving special treatment to certain parties over others.

In that context, it made sense for deadlines to be set in the Act, with the Commission having little discretion in how it carried out its role.


Result

The court rejected NZ Loyal’s claim for interim relief.

The case provides a timely reminder that the doctrine of Parliamentary sovereignty remains the fundamental constitutional principle in New Zealand law.

For further information on this case or similar issues, please contact Director Brigitte Morten

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